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Up-to-date Information on Real Estate, Land Use & Environmental LawTue, 05 Sep 2017 17:39:54 +0000en-UShourly1https://wordpress.org/?v=4.7.8Subscribe with My Yahoo!Subscribe with NewsGatorSubscribe with My AOLSubscribe with BloglinesSubscribe with NetvibesSubscribe with GoogleSubscribe with PageflakesSubscribe with PlusmoSubscribe with The Free DictionarySubscribe with Bitty BrowserSubscribe with NewsAlloySubscribe with Live.comSubscribe with Excite MIXSubscribe with Attensa for OutlookSubscribe with WebwagSubscribe with Podcast ReadySubscribe with FlurrySubscribe with WikioSubscribe with Daily RotationNinth Circuit Vacates Condition Registration for Nanosilver-containing Pesticide Due to Lack of Evidence that its Use is in The Public Interesthttp://feeds.lexblog.com/~r/RealEstateLandUseEnvironmentalLaw/~3/Gnb1OLKeGbM/nanosilver-containing-pesticide-nspw.html
https://www.realestatelanduseandenvironmentallaw.com/nanosilver-containing-pesticide-nspw.html#respondTue, 05 Sep 2017 16:39:17 +0000http://www.realestatelanduseandenvironmentallaw.com/?p=2701Continue Reading]]>Natural Resources Defense Council v. E.P.A., __ F.3d ___, 2017 WL 2324714 (9th Cir. May 30, 2017). The Ninth Circuit Court has vacated the conditional registration of the pesticide NSPWL30SS (“NSPW”)—an antimicrobial materials preservative that uses nanosilver as its active ingredient—on the grounds that the Environmental Protection Agency (“EPA”) failed to provide substantial evidence that the use of the ingredient was in the public interest. Id. at *2.

NSPW is a material preservative manufactured by Nanosilva LLC that, when incorporated into plastics or textiles, can help suppress the growth of bacteria, mold, mildew, and other odor causing organisms. Id. The active ingredient in NSPW is nanosilver, a version of “conventional” silver that is engineered to have a much smaller particle size. Id. Recognizing the potential benefits of nanosilver, companies began approaching EPA to register the pesticide for sale in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). Id. Under FIFRA, pesticides may be registered on either a conditional or unconditional basis. Id. at *4. Unconditional registration may be granted when an applicant submits sufficient data to evaluate the environmental effects of the product. Id. Alternatively, if the applicant is unable to provide such evidence, EPA may grant conditional registration under specific circumstances. Id. If EPA lacks the data required for unconditional registration because “a period reasonably sufficient for generation of the data has not elapsed,” conditional registration may be granted if the product is found to be in the public interest. 7 U.S.C. § 136a(c)(7)(C). A FIFRA panel was convened to discuss the potential hazards associated with the new pesticide, finding that nanosilver should be treated differently than conventional silvers. 2017 WL 2324714, at *3. Upon review of the FIFRA panel’s findings, EPA decided to conditionally register NSPW. Id. EPA found that NSPW had the potential to reduce environmental loading and silver release, satisfying the public interest requirement, and that Nanosilva LLC had insufficient time to amass the data necessary for unconditional registration. Id.

In its petition, the Natural Resources Defense Council (“NRDC”) opposed EPA’s conditional registration of NSPW, arguing that EPA failed to support its findings that (1) the use of NSPW is in the public interest; and (2) that Nanosilva LLC had insufficient time to submit the required data for conditional registration. Id. at *1. Ultimately, the Ninth Circuit sided with NRDC as to the former argument and did not address the latter.

In reviewing EPA’s decision, the court noted that it would sustain the conditional registration if the public-interest requirement was supported by substantial evidence when considered on the record as a whole—defining substantial evidence as more than a mere scintilla, but less than a preponderance. Id. at *3. The court noted that the public-interest requirement reflects an important distinction between conditional and unconditional registration requirements because it allows for the production of a pesticide with less than complete risk data. Id. at *4. Because there had not been a prior decision considering the public-interest requirement and the statute itself does not further define it, the court looked to the legislative history of the act to understand its implications. Id. at *5. Specifically, the court gave weight to statements made by Senator Leahy, who sponsored the bill, indicating that conditional registration “would be reserved to the truly exceptional case” and that the publicinterest requirement was “a more stringent test” than required for unconditional registration. Id.

EPA had concluded that use of NSPW has the potential to reduce the amount of silver released into the environment. Id. While NRDC did not dispute that reducing the amount of silver released into the environment would be in the public’s interest, they did dispute the underlying assumptions made to support EPA’s conclusion. Id. EPA had relied on three assumptions in concluding that NSPW would potentially reduce the amount of silver leached into the environment. Id. First, NSPW has a lower application rate (meaning it uses less silver) than conventional silver pesticides. Second, NSPW has a lower mobility rate (meaning it is less likely to release silver into the environment in detectable quantities). Lastly, for the lower application and mobility rate to actually lead to a reduction in silver leaching into the environment, EPA had to assume that current users of conventional silver pesticides would switch to NSPW and/or that NSPW would not be incorporated into new products. Id. While the court concluded that the first two premises were supported by substantial evidence, it held that the third premise impermissibly relied on unsubstantiated claims. Id.

The Ninth Circuit reasoned that lower application and mobility rates alone were necessary, but not sufficient, to conclude that nanosilver would decrease the amount of silver introduced into the environment. Id. at *7. For this to be the case, EPA would have to also assume that current users of conventional silver pesticides will replace those pesticides with NSPW (“the substitution assumption”) and that NSPW will not be incorporated into new products to the extent that such incorporation would increase the overall amount of silver introduced into the environment (“the no-new-products assumption”). Id. Because EPA was unable to provide substantial evidence as to these assumptions, the court sided with NRDC in concluding that EPA’s public-interest requirement was not satisfied. Id at *8.

This article originally appeared in the American Bar Association’s “Environmental Litigation and Toxic Torts Committee Newsletter.”

]]>https://www.realestatelanduseandenvironmentallaw.com/nanosilver-containing-pesticide-nspw.html/feed/0https://www.realestatelanduseandenvironmentallaw.com/nanosilver-containing-pesticide-nspw.htmlNinth Circuit Affirms Forest Service’s Authority to “Choose Jobs Over Wolves”http://feeds.lexblog.com/~r/RealEstateLandUseEnvironmentalLaw/~3/C9hdfn5cX6E/forest-services-authority.html
https://www.realestatelanduseandenvironmentallaw.com/forest-services-authority.html#respondTue, 05 Sep 2017 16:38:27 +0000http://www.realestatelanduseandenvironmentallaw.com/?p=2710Continue Reading]]>In re Big Thorne Project and 2008 Tongass Forest Plan, __ F.3d __, 2017 WL 2233755 (9th Cir. May 23, 2017). Plaintiffs, environmental conservation and activist organizations, brought suit against the U.S. Forest Service and Department of Agriculture (collectively, “Forest Service”) on behalf of individuals who fish, hunt, and “enjoy” Alaska’s Tongass National Forest. Id. at *3. Plaintiffs alleged that the Forest Service violated the National Forest Management Act (the “Act”) by approving either the 2008 Tongass Forest Plan or the Big Thorne logging project. Id. at *2. The Ninth Circuit affirmed the district court’s summary judgment in favor of the Forest Service, holding that the Forest Service’s approval was neither arbitrary nor capricious because the Act expressly grants the Forest Service discretion to balance competing interests, and the Forest Service reached its determination after a thorough analysis rationally supported by the evidence. Id. at *5.

The Big Thorne logging project permits timber harvesting in the Tongass National Forest, which includes rainforest on an island on which the Alexander Archipelago wolf resides. Id. at *2. The rare (but not threatened or endangered under the Endangered Species Act) wolf depends on deer living in the rainforest to survive. Id. The Forest Service adopted the Tongass Forest Plan in 2008. Id. The Forest Plan included two guidelines recommended by a team of scientists to address concerns regarding the habitat of the Alexander Archipelago wolf. Id. The first guideline, known as the “wolf provision,” stated that the Forest Service would “[p]rovide, where possible, sufficient deer habitat capability to . . . maintain sustainable wolf populations” and noted that 18 deer per square mile was generally considered to be sufficient habitat capability. Id. The second guideline, known as the “road provision,” stated that “[t]otal road densities of 0.7 to 1.0 mile per square mile or less may be necessary” to protect the wolves. Id. The Ninth Circuit rejected plaintiffs’ claim that the Forest Service’s approval of the logging project violated the Forest Plan. Id. at 4. Regulations in place at the time the Forest Plan was approved “required that national forests ‘be managed to maintain viable populations of existing native and desired non-native vertebrate species.’” Id. at *3. Under the regulations, a “viable population” meant one with enough “reproductive individuals to insure its continued existence is well distributed in the planning area.” Id. Although the “wolf provision” confusingly used the term “sustainable” rather than “viable,” the Ninth Circuit determined that the terms need not be parsed because the proper inquiry was whether the Forest Service unlawfully concluded that its Forest Plan would safeguard the continued and well-distributed existence of the Alexander Archipelago wolf. Id. The Ninth Circuit further found that the Forest Plan’s inclusion of language stating that the Forest Service would “[p]rovide, where possible, sufficient deer habitat capability to . . . maintain sustainable wolf populations” was aspirational, not obligatory. Id. Thus, the Ninth Circuit agreed that the guideline gave the Forest Service “flexibility and discretion” to balance competing objectives and did not require them to maintain viability of the wolf population. Id.

The Ninth Circuit also rejected plaintiffs’ argument that this broad discretion and the failure to set hard viability minimums were itself a violation of the Act. Id. at *4. The Ninth Circuit noted that there is no authority compelling an agency to set specific standards for protecting a species that has not been granted protection under the Endangered Species Act. Id. Furthermore, the court explained that the goal of the Act was to permit the Forest Service to “manag[e] competing uses, none to the exclusion of others.” Id. Thus, the Act could not be fairly interpreted to require the Forest Service to establish set viability minimums that could not be breached. Id.

The Ninth Circuit held that the Forest Service met its legal obligation to supply “a rational connection between the facts found and the conclusions made” because the Forest Plan concluded that it will sustain viable wolf populations, considered various alternatives, and outlined a multipart strategy to achieve its goal consistent with its analysis and discussion. Id. at *5. Accordingly, the Ninth Circuit refused to substitute its judgment for that of the Forest Service in determining the proper balance of competing interests under the Act, stating that “[i] n the end, the Service chose jobs over wolves. We have no authority to second-guess that judgment.” Id. The Ninth Circuit rejected plaintiffs’ claim that the Big Thorne logging project was inconsistent with the Forest Plan for the same reason. Id.

This article originally appeared in the American Bar Association’s “Environmental Litigation and Toxic Torts Committee Newsletter.”

]]>https://www.realestatelanduseandenvironmentallaw.com/forest-services-authority.html/feed/0https://www.realestatelanduseandenvironmentallaw.com/forest-services-authority.htmlOklahoma Court Dismisses Fracking Earthquake Case Due to Court’s Lack of Scientific Expertisehttp://feeds.lexblog.com/~r/RealEstateLandUseEnvironmentalLaw/~3/GjVPzuuvLVo/district-court-defers-occ.html
https://www.realestatelanduseandenvironmentallaw.com/district-court-defers-occ.html#respondTue, 05 Sep 2017 16:23:13 +0000http://www.realestatelanduseandenvironmentallaw.com/?p=2704Continue Reading]]>Sierra Club v. Chesapeake Operating LLC et al., __ F. Supp. 3d ___, 2017 WL 1287546 (W.D. Okla. 2017). The Sierra Club filed a citizen suit under the Resource Conservation and Recovery Act (“RCRA”) against Chesapeake Operating LLC, Devon Energy Production Co. LP, Sandridge Exploration and Production LLC, and New Dominion LLC (collectively, “defendants”), alleging that the defendants’ fracking activities increased the number and severity of earthquakes in Oklahoma. Id. at *1. The Sierra Club sought declaratory and injunctive relief from the court requiring the defendants to reduce their wastewater disposal volume, reinforce structures vulnerable to earthquakes, and establish an earthquake monitoring center. Id. The defendants moved to dismiss the complaint, contending that the court should decline to exercise jurisdiction under the Burford abstention and primary jurisdiction doctrines because the (“OCC”) has implemented new regulations and water disposal directives in response to increased seismic activity. Id. at *2. The district court granted the defendants’ motion to dismiss, deferring to the OCC expertise on both grounds. Id. at *10.

The court began its analysis by recounting the complicated legal framework and processes governing fracking in Oklahoma. The court recognized that the OCC has “exclusive jurisdiction, power and authority . . . to promulgate and enforce rules” to regulate injection wells, or Class II wells, used in fracking. Id. at *2. Furthermore, the OCC regulates Class II wells through a comprehensive system of permit adjudication and must approve every Class II well. Id. The OCC may suspend, modify, vacate, amend or terminate “an order or permit granting an underground injection application during its term for cause.” Id. Additionally, any interested person has the right to apply to the OCC to repeal, amend, modify, or supplement its administrative orders. Id. The OCC must consider these applications as expeditiously as possible and any appeal lies with the Oklahoma Supreme Court. Id. Finally, the court noted that the OCC may “take whatever action necessary to promptly respond to emergency situations having potentially critical environmental or public safety impact . . . including, but not limited to, seismic activity.” Id. at *2–3.

The court concluded that, under this regulatory framework, the OCC “responded energetically” to minimize the earthquake risk due to fracking activities within the state. Id. at *10. In 2014, the OCC adopted rules requiring a daily recording of well pressure and volume for disposal wells. Id. at *4. In 2015 and 2016, it issued numerous directives to reduce disposal volumes, such as implementing a 40 percent volume reduction plan for over 600 wells, or to stop operations altogether. Id. In the aggregate, the reduction plans reduced Class II disposal wells by approximately 800,000 barrels a day and involved about 700 disposal wells. Id. This year, the OCC imposed additional limits for wells within the 15,000-square-mile area of interest. Id. All of these directives were mandatory and required immediate implementation. Id.

With this background in mind, the court addressed defendants’ first request to dismiss the Sierra Club’s RCRA claim pursuant to the Burford abstention doctrine. This doctrine, which was enacted to protect complex state administrative processes from undue federal influence, requires federal courts to decline jurisdiction in situations “where the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Id. at *10. The court determined abstention was appropriate because the OCC was the primary Class II wastewater regulator under both federal and state law and, pursuant to its authority, the OCC had to make a coordinated response to seismicity that encompassed a substantial portion of the state. Id. at *11. Furthermore, seismicity is an area of substantial public concern. Finally, the court determined that timely state court review was available as well. Id. at *11. Accordingly, the court declined review under the Burford abstention doctrine. Id.

The court also granted defendants’ motion to dismiss on the basis of primary jurisdiction for similar reasons. First, the court found that the Sierra Club’s factual issues are outside the conventional experience of judges. Id. at *17. The court determined that the OCC is “better equipped . . . to resolve the seismicity issue relating to disposal well activities by specialization, by insight gained through experience, and by more flexible procedure.” Id. at *18. Second, the court observed that the defendants “could be subjected to conflicting orders of both the court and the OCC” if the court found for the Sierra Club. Id. The court viewed a clear need for uniformity and consistency in addressing seismic activity so it deferred to the OCC. Id. Third, although no formal agency proceedings had been initiated, the court found that the OCC “had been taking an escalating series of voluntary measures to curtail injection.” Id. at *19. Fourth, the court determined that the “OCC had demonstrated diligence in resolving these issues.” Id. at *20. Fifth, the Sierra Club requested injunctive relief, which makes the primary jurisdiction doctrine more readily applicable. Id. In addition, the requested relief required scientific and technical expertise, which the OCC possesses. Id. Consequently, the court found that the OCC had primary jurisdiction. Id. Finally, because there is no statute of limitation applicable to the Sierra Club’s RCRA claim, the Sierra Club would not be unfairly prejudiced or disadvantaged by a dismissal instead of a stay. Id. at *21–22.

This article originally appeared in the American Bar Association’s “Environmental Litigation and Toxic Torts Committee Newsletter.”

]]>https://www.realestatelanduseandenvironmentallaw.com/district-court-defers-occ.html/feed/0https://www.realestatelanduseandenvironmentallaw.com/district-court-defers-occ.htmlFaceoff with Federal Government Possibly Looming Following California Supreme Court CEQA Ruling; Cal High Speed Rail Project Also Vulnerablehttp://feeds.lexblog.com/~r/RealEstateLandUseEnvironmentalLaw/~3/RiYtp84tG24/ceqa-ruling.html
https://www.realestatelanduseandenvironmentallaw.com/ceqa-ruling.html#respondTue, 22 Aug 2017 16:17:34 +0000http://www.realestatelanduseandenvironmentallaw.com/?p=2697Continue Reading]]>In July 2017, the California Supreme Court determined the federal Interstate Commerce Commission Termination Act of 1995 (49 U.S.C. § 10101 et seq.) (“ICCTA”) does not preempt the application of the California Environmental Quality Act of 1970 (Pub. Res. Code § 21000 et seq.) (“CEQA”), a state statute, to a state public entity railroad project on a rail line owned by that same entity, the North Coast Rail Authority (“NCRA”). Friends of the Eel River resolves a split among the California Courts of Appeal.[1] However, the decision may conflict with federal precedent and could eventually reach the Supreme Court. As the majority opinion and the dissent both emphasize, the decision creates a direct conflict with the federal Surface Transportation Board’s (“STB”) determination that ICCTA preempts any application of CEQA to California’s state-owned, high-speed rail project.[2] Thus, the dispute over CEQA’s application to High-Speed Rail may need to be resolved by the U.S. Supreme Court. Additionally, Friends of the Eel River introduces more legal complications for the planned $64 billion bullet train between Los Angeles and San Francisco, as it appears to require that project to comply with CEQA, which could lead to additional litigation.

The court ruled ICCTA’s regulatory scheme, which preempts a state’s imposition of “environmental preclearance requirements” that have the effect of preventing or delaying the operation of a privately-owned railroad project, does not apply to the governance of subdivisions of a sovereign state, here the NCRA. As applied to the NCRA, CEQA compliance is not a preempted state regulation at all, but a permissible act of self-governance on the part of the state.

Beginning its opinion with extensive federal preemption analysis, the court acknowledged the “national system of railroads is of peculiarly federal, not state concern” and that the goals of ICCTA would be diluted “if states could compel the rail industry to comply with the regulation of railroads that conflicted with federal law, or even to comply with supplementary regulation of railroads on a state-by-state basis.” The court also recognized that “in the ordinary regulatory setting, in which a state seeks to govern private economic conduct, applying CEQA to condition state permission to go forward with railroad operations would be preempted.” Nevertheless, distinguishing the facts before it, the court’s decision hinged on the “presumption that, in the absence of unmistakably clear language, Congress does not intend to deprive the state of sovereignty over its own subdivisions to the point of upsetting the usual constitutional balance of state and federal powers.”

Notably, the decision finds that “[p]reempting the state‘s ability, through its laws, to adopt general precepts governing its own development schemes in the sphere in which private owners would have freedom of action would leave the state, as owner, without the tools necessary to govern its own subdivision,” and that “such preemption could deprive the state of the ability to make decisions that would carry out the goals the state embraced concerning development projects, including undertaking environmental mitigation or deciding not to undertake a project at all because of its environmental hazards.”

The court then reasoned that the state, acting in accord with CEQA, is operating within “a sphere of regulatory freedom enjoyed by owners” permitted under ICCTA. Therefore, the state was free to voluntarily subject itself to self-governance, comparable to a private owner following its “internal corporate rules and bylaws” in guiding its “market-based decisions.” The court found that the federal law must allow “the state as owner [to] make its decisions based on its own guidelines rather than some anarchic absence of rules of decision.”

Although the court overturned the appellate court’s determination that ICCTA “categorically” preempts CEQA from applying to the state and its subdivisions, the court did uphold the First Appellate District’s holding limiting the remedies available to petitioners under CEQA. Specifically, petitioners could not use CEQA to seek injunctive relief to directly enjoin Northwestern Pacific Railroad Co., the private freight operator, from conducting its freight operations because this “would not involve simply the state’s autonomy and control over its subdivisions, but would constitute use of state law to restrict operations by a private rail carrier – a classic example of state regulation.” The opinion also acknowledged that other CEQA remedies might also be pre-empted to the extent they impose “unreasonable burdens.”

This case also determined the “market participant doctrine” exception to preemption was not fully on point, but was informative to the extent “CEQA can be seen as an expression of how the state, as proprietor, directs that a state enterprise will be run – an expression that can be analogized to private corporate bylaws and guidelines governing corporate subsidiaries.”

Justice Leondra Kruger also signed the majority opinion, but then authored a separate concurrence, stressing it remains an open issue as to whether “particular CEQA remedies might be preempted by the ICCTA to the extent the remedy is one that unreasonably interferes with the jurisdiction of the [federal] Surface Transportation Board (“STB”), which has authorized service over the rail line in question.”

Justice Carol Corrigan dissented, stating that finding “a law of general application” like CEQA to “be considered a ‘regulation’ of private activity, but not of public activity in the same sphere, appears to be unsupported by precedent” and it unfairly “forces the state to undertake a burden no private railroad owner must bear.” Justice Corrigan concluded her dissent by calling into question the majority’s “wisdom” in issuing a decision that created a “direct conflict with the state views of STB.”

Practical Points

Friends of the Eel River has consequences far beyond court’s utilization of the principle of strict statutory construction when determining federal preemption. As alluded to above, this decision creates a conflict with federal precedent that could lead to a faceoff with the federal government. As the majority opinion and Justice Corrigan’s dissent both emphasize, the decision creates a direct conflict with STB’s own determination that ICCTA preempts any application of CEQA to California’s state-owned, high-speed rail project.[3] Thus, the dispute over CEQA’s application to High-Speed Rail may need to be resolved by the U.S. Supreme Court – the only court with the authority to issue an opinion contrary to and binding upon the California Supreme Court.

Additionally, Friends of the Eel River introduces more legal complications for the planned $64 billion bullet train between Los Angeles and San Francisco, as it appears to require compliance with CEQA and makes the project vulnerable to additional litigation.

]]>https://www.realestatelanduseandenvironmentallaw.com/ceqa-ruling.html/feed/0https://www.realestatelanduseandenvironmentallaw.com/ceqa-ruling.htmlCorps and EPA Solicit Public Comment on Restoring Pre-Clean Water Rule Regulationshttp://feeds.lexblog.com/~r/RealEstateLandUseEnvironmentalLaw/~3/BjpNS1Mhh8M/pre-clean-water-rule.html
https://www.realestatelanduseandenvironmentallaw.com/pre-clean-water-rule.html#respondFri, 28 Jul 2017 16:11:56 +0000http://www.realestatelanduseandenvironmentallaw.com/?p=2693Continue Reading]]>On July 27, 2017, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published their proposed rule to rescind the Clean Water Rule. This is the same rule that was released in pre-publication form in June, which we described in a previous entry.

The rule is the first step in the two-step process the agencies announced in implementing the Presidential Executive Order on “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule” that was issued on February 28, 2017. The second step involves proposing a new definition of waters of the United States based on Justice Scalia’s plurality decision outlined in Rapanos v. United States, 547 U.S. 715 (2006).

The agencies seek comment on whether, as an interim step, to restore the pre-Clean Water Rule definitions and regulations. The comment period ends on August 28, 2017. Comments on the definition of waters of the United States will be sought in a second, subsequent rulemaking.

]]>https://www.realestatelanduseandenvironmentallaw.com/pre-clean-water-rule.html/feed/0https://www.realestatelanduseandenvironmentallaw.com/pre-clean-water-rule.htmlCalifornia Proposes New Permitting Procedures for Impacts to Wetlands and Waters of the Statehttp://feeds.lexblog.com/~r/RealEstateLandUseEnvironmentalLaw/~3/Xe_yzls-tv0/ca-permitting-procedures-wetlands.html
https://www.realestatelanduseandenvironmentallaw.com/ca-permitting-procedures-wetlands.html#respondMon, 24 Jul 2017 22:20:01 +0000http://www.realestatelanduseandenvironmentallaw.com/?p=2690Continue Reading]]>On July 21, 2017, the California State Water Resources Control Board (State Board) published its latest proposal for new permitting procedures that would apply to waters of the State, including wetlands. The proposal – which would define wetlands, create delineation procedures, and impose requirements for an alternatives analysis and mitigation – will be vetted through workshops and a public hearing, with the public comment period ending September 7, 2017. The State Board could adopt the proposal as early as the fall of 2017.

The proposed State Wetland Definition and Procedures for Discharges of Dredged or Fill Materials to Waters of the State represent the latest development in a program the State Board has been working on since 2007, in response to U.S. Supreme Court decisions narrowing the scope of aquatic resources subject to the federal Clean Water Act (CWA). The State Board issued its prior draft of the proposal just over a year ago, drawing opposition from industry groups, environmental organizations, and other state and federal agencies. The current proposal addresses comments on the prior draft by revising provisions that deal with jurisdictional determinations, alternatives analyses, and other key parts of the procedures.

Like the 2016 draft, the current proposal contains a definition of “wetlands” that is similar, but not identical, to the federal definition in the CWA. The federal definition requires three criteria to be met to define a feature as a wetland, but the proposed State definition requires only two of those criteria in certain circumstances. As a result, some features that would not qualify as wetlands under federal law could be regulated under the proposed State procedures. In response to comments on the 2016 draft, the current proposal also includes a list of wetlands that are considered waters of the State, and thus subject to the proposed permitting procedures, and others that are not – primarily those that are artificially created and used for industrial, agricultural, or water quality treatment purposes.

Under the proposal, Regional Water Quality Control Boards would have the authority to require an “alternatives analysis” before permitting fill of waters of the state, similar to the analysis required before the U.S. Army Corps of Engineers can permit a project under Section 404 of the CWA. Like its federal analogue, the state alternatives analysis would require that any permitted project be the least environmentally damaging practicable alternative, or LEDPA — but the existence of parallel requirements under state and federal law would create the possibility that state and federal regulators may reach different LEDPA determinations or may disagree on the level of analysis required for a project.

The proposal also includes mitigation requirements that are based on the Corps and U.S. EPA’s 2008 mitigation rule. Like the definition of wetlands, these new requirements are similar but not identical to their federal counterparts. The State Board believes that, in most cases, these differences will not materially affect the permitting process. However, the overlapping regulatory framework would create the potential for conflicting determinations from different agencies.

Judicial deference to a lead agency’s determination regarding the proper greenhouse gas (“GHG”) threshold for a project California Environmental Quality Act (“CEQA”) remains a swinging pendulum. The California Supreme Court recently upheld the San Diego Association of Government’s (“SANDAG”) determination that the year 2050 statewide GHG reduction goals set forth in Executive Order S-3-05 (“Executive Order”) issued in 2005 did not create a CEQA threshold of significance an agency must follow. However, the court did so for reasons different than SANDAG stated in the response to comments on the Environmental Impact Report (“EIR”) on proposed amendments to its Regional Transportation Plan (“RTP”). In Cleveland National Forest Foundation, et al. v. San Diego Association of Governments (2017) __ Cal. 5th __, Supreme Court Case No., S223603, the court found that “SANDAG did not abuse its discretion in declining to adopt the 2050 goal as a measure of significance because the Executive Order does not specify any plan or implementation measure to achieve its goal.” The EIR’s long-term GHG analysis adequately informed the public and agency, in part, because SANDAG summarized the Executive Order in the EIR’s regulatory framework section and disclosed the increase in GHG emissions in 2050 compared to the 2010 baseline. An analysis of “Lessons Learned and Reaffirmed” by the case appears at the end of this post.

The California Attorney General joined Cleveland Nation Forest Foundation and several other environmental groups in opposing the EIR. The Attorney General hoped to send a message to cities, counties and regional planning agencies to be more aggressive in adopting GHG-reducing policies in their long-term planning documents. Indeed, the Attorney General actively opposed several General Plan approvals soon after California adopted its landmark California Global Warming Solutions Act of 2006 (AB 32.)

The Attorney General argued in this case that only through analysis of the Executive Order could the general public and agency decision-makers have “meaningful context” to adequately evaluate the environmental impacts of SANDAG’s RTP. The latter set forth SANDAG’s 40-year regional plan for land use and transportation infrastructure investment. The Executive Order set forth a goal of reducing statewide GHG emissions levels to 80% below 1990 levels by the year 2050 based on scientific consensus that such levels would be necessary for California to stabilize GHG emissions at 450 parts per million. California has determined this to be its fair share to achieve climate stabilization, and therefore an appropriate state‑wide goal against which project GHG emissions should be evaluated. The Attorney General was concerned that it was not enough for SANDAG to just declare a significant and unmitigable impact without also explaining the broader consequences of the impact remaining significant and unmitigated. Within that larger context, the Attorney General was also specifically concerned that SANDAG’s RTP did not go far enough in promoting land use patterns near transit and investing in transit infrastructure (as opposed to road infrastructure) that would assist the state in meeting the 2050 goal by reducing GHG emissions related to San Diego’s average vehicle miles traveled.

The Attorney General prevailed at the trial court and court of appeals. The Supreme Court accepted SANDAG’s appeal on the limited issue of whether a lead agency is required to use the Executive Order as its CEQA GHG significance threshold.

SANDAG’s response to the Attorney General comments on the EIR had stated there was no legal requirement to analyze the RTP’s consistency with the Executive Order because (a) the Executive Order was not an adopted GHG reduction plan within the meaning of CEQA Guidelines 15064.4(b)(2); and (b) SANDAG’s role in achieving the statewide 2050 target is uncertain and small.

The Supreme Court held that SANDAG’s small role in achieving the Executive Order’s 2050 target was not a valid reason because GHG is a cumulative impact so no one project has a significant direct impact. Nearly all projects have a small impact, and the solution to climate change requires the aggregation of many small reductions in greenhouse gas emissions by public and private actors at all levels.

The court also held that even though the Executive Order is not an adopted GHG reduction plan, a lead agency must still exercise its discretion about what significance threshold to use “based to the extent possible on scientific and factual data.” (CEQA Guidelines 15064(b).) Accordingly, the court found that the scientific information in the Executive Order has important value to policymakers and citizens when considering the emission impacts of a project like the RTP because it expresses the pace and magnitude of reduction efforts that the scientific community believes is necessary to stabilize the climate.

Nevertheless, the court simply disagreed with the Attorney General that the RTP EIR ignored the Executive Order when the RTP EIR disclosed it would have a significant and unmitigated GHG impact in 2050 based on the different significance thresholds SANDAG utilized. The court noted the following:

The Executive Order was explained in the GHG analysis as part of the regulatory framework for GHG;

The 2050 goal was noted in the EIR in the course of SANDAG explaining why it chose not to use the target as a measure of significance;

The EIR disclosed the total project emissions in 2050 (33.65 MMT CO2e) and compared them to the existing condition level in 2010 of 28.85 MMT CO2e and therefore concluded the RTP would have a significant impact.

Given these facts, the court held that even if the EIR could have presented the information more clearly, the information was still presented “in a manner calculated to adequately inform the public and decision makers, who may not be previously familiar with the details of the project.” The court believed“[i]t was not difficult for the public reading the EIR to compare the upward trajectory of projected greenhouse gas emissions under the Plan for 2020 through 2050 with the Executive Order’s goal of reducing emissions to 80 below 1990 levels by 2050.” The court found that “SANDAG did not abuse its discretion in declining to adopt the 2050 goal as a measure of significance in light of the fact that the Executive Order does not specify any plan or implementation measure to achieve its goal. Neither the Attorney General nor the other plaintiffs point to any guidance as to how the 2050 goal translates into specific reduction targets broken down by region or sector of emissions-producing activity.”

The court accepted SANDAG’s claim that “there are presently no reliable means of forecasting how future technological developments or state legislative actions to reduce greenhouse gas emissions may affect future emissions in any one planning jurisdiction…Lead agencies can only guess how future technical development or state (or federal or international) actions may affect emissions from the myriad of sources beyond their control.” Accordingly, based on the information available to SANDAG at the EIR’s certification in 2011, the potential impacts in 2050 from future development were too speculative to evaluate. The court sympathized with SANDAG stating, “It is not clear what additional information SANDAG should have conveyed to the public beyond the general point that the upward trajectory of emissions under the Plan may conflict with the 2050 emissions reduction goal.” Nevertheless, as CEQA practitioners are aware, the case for why an impact is too speculative to evaluate can be made only “after thorough investigation.” (CEQA Guidelines 15145.) Accordingly, the court cautioned SANDAG and other lead agencies that its holding does not mean that this analysis can serve as a template for future EIRs because “as more and better data become available, analysis of the impact of regional transportation plans on greenhouse gas emissions will likely improve.”

Indeed, five years after the 2010 RTP was adopted, SANDAG adopted its 2015 RTP. The court noted that the latter “reflected additional certainty regarding the regulatory environment, including future projections on renewable energy, building efficiency, water conservation, and solid waste diversion.” The court further noted that the state’s adoption of SB 32 setting a statewide interim threshold of reducing GHG emissions to 40% below 1990 levels by 2030 and the California Air Resources Board had been charged with crafting regulations to implement that goal. The court predicted this “regulatory clarification, together with improved methods of analysis, may very well change the manner in which CEQA analysis of long-term greenhouse gas emission impacts is conducted.” The court affirmed that “planning agencies like SANDAG must ensure that CEQA analysis stays in step with evolving scientific knowledge and state regulatory schemes.” The court’s final conclusion thus cautions lead agencies that they cannot necessarily rely on the 2010 RTP EIR’s significance thresholds to satisfy a future RTP EIR’s long-term GHG analysis.

Lessons Learned and Reaffirmed:

In this author’s opinion, the court’s decision to issue a limited opinion is a bit ironic. SANDAG had already replaced the 2010 RTP with a 2015 RTP that discussed the Executive Order prior to the Supreme Court taking the case. However, the court agreed the controversy was not moot because the case presented “an important issue of law that is likely to recur yet evade review because of the short period of time between adoption of a RTP and adoption of a successor plan.” If the court anticipates the issue will recur, but the opinion is limited to the SANDAG 2010 RTP EIR, then what guidance does the case truly provide to CEQA practitioners and lead agencies on how to analyze long-term GHG emissions? Although less obvious than in other Supreme Court opinions, here are some practical lessons learned from the opinion, as well as some unanswered questions:

1) It is wise for lead agencies to express GHG analysis in terms of compliance with CEQA Guidelines section 15064.4. SANDAG’s three significance thresholds essentially followed the three factors for assessing GHG significance found in CEQA Guidelines 15064.4(b), which state the following:

(a) The extent to which the project may increase or reduce greenhouse gas emissions as compared to the existing environmental setting;

(b) Whether the project emissions exceed a threshold of significance that the lead agency determines applies to the project; and

(c) The extent to which the project complies with regulations or requirements adopted to implement a statewide, regional or local plan for the reduction or mitigation of greenhouse gas emissions.

The court stressed that “Whether or not any one method, by itself, would have provided sufficient analysis, we conclude that these three methods together adequately informed readers of potential greenhouse gas emission impacts.”

SANDAG appears to have benefitted from disclosing its project impacts in 2020, 2035, and 2050, compared to the existing baseline pursuant to 15064.4(b)(1). The Supreme Court was able to make the connection between this emissions level disclosure and information about how the Executive Order fits into the regulatory background in order to understand why SANDAG concluded its GHG impacts were significant and unmitigated in 2050 and what the environmental consequences were.

Additionally, SANDAG appears to have benefitted from focusing its analysis on the project’s consistency with applicable GHG reduction plans pursuant to CEQA Guidelines 15064.4(b)(3). While the court held that the Executive Order was not a GHG reduction plan and therefore not grounds for ignoring the Executive Order, the court also affirmed that SANDAG exercised careful judgement when it selected consistency with GHG reduction plans as one of its three GHG thresholds of significance. Moreover, the court stated that the Executive Order did not contain any regional or sector specific targets to guide SANDAG so it was proper for SANDAG to simply disclose the 2050 emissions level. CEQA practitioners learned in the recent case Center for Biological Diversity v. California Dept. of Fish and Wildlife (2015) 62 Cal. 4th 204, 225-228, that the Supreme Court is wary of statewide targets and values regional and sector‑specific targets, which are often features in a GHG reduction plan.

2) It is wise for lead agencies to at least discuss the Executive Order in an EIR’s regulatory background section and the consequences experts believe will come from the State’s failing to stabilize GHG emissions at 450 ppm by 2050.

3) It is wise for lead agencies to disclose whether a project subject to long-term GHG analysis has an upward trend in emissions from 2020 to 2050 or a downward trend in emissions. The RTP’s upward trend in GHG emissions caused SANDAG to conclude impacts in 2035 and 2050 were significant and unmitigated, but most development projects have a downward trend because new GHG-reducing regulations go into effect after 2020, thus further reducing a project’s GHG impacts. The Supreme Court’s opinion cautions lead agencies to continue to refine its GHG analysis as regulations and methods of analysis advance. It noted that SANDAG’s new 2015 RTP EIR “was able to account for many factors in the GHG inventories that were not accounted for in 2011, reflecting “additional certainty regarding the regulatory environment, including future projects of renewable energy, building energy efficiency, water conservation programs, and solid waste diversion.” One way to do so is to disclose how implementation of future regulations will affect the level of GHG emissions from a project, to the extent it can be measured by a methodology the agency believes is appropriate. The Supreme Court’s opinion clearly does not require a lead agency to engage in speculation about a future regulation’s impact, but does caution agencies to keep up with modeling devices that can measure such impacts. Most GHG consultants working in California are well-versed in identifying which regulatory measures can be quantified and which ones cannot by various GHG modeling programs.

4) It is wise for a lead agency to document why it believes an impact is too speculative to evaluate in the context of long‑term GHG impacts. In this case, the Supreme Court acknowledged the seemingly obvious speculative nature of long-term GHG analysis based on information available to SANDAG in 2010. That is not always the case, however, even for other projects approved in this same time period.

Lead agencies influenced by the Attorney General’s litigation against agencies who adopt long‑term planning documents sometimes invite more litigation by over-promising. The trial court and court of appeals that decided this case also decided at the same time Sierra Club v. County of San Diego (2014) 231 Cal. App. 4th 1152. In that case, the County’s General Plan committed to achieving long range GHG reduction targets found in Executive Order S-S-05, but its climate action plan failed to adequately document why it was too speculative to analyze mitigation measures beyond 2020 and failed to commit to mitigation measures despite commitment to its climate action plan. Our prior analysis of this decision can be found here.

Of note, while SANDAG successfully appealed the court of appeals decision and found the Supreme Court receptive to SANDAG’s plea that a detailed long-term GHG analysis was too speculative, the County, on the other hand, opted to commence revision of its climate action plan in accordance with the court of appeals decision. Its reward for doing so was a second lawsuit from the Sierra Club, in which the trial court recently enjoined the County from adopting any interim GHG threshold that is not based on the climate action plan and chastised the County for not processing its new climate action plan quickly enough. For all the trouble the County General Plan’s commitment to developing a climate action plan has caused the County, and since CEQA does not mandate a lead agency adopt a climate action plan, other jurisdictions may decide they are better off simply making GHG significance determinations on a project-by-project basis, rather than attempting to approve a climate action plan.

Unanswered Questions:

1) Is a long-term GHG analysis required for projects that do not have a planning horizon that spans 2050? A regional transportation plan need only be for 20 years. SANDAG chose a 40‑year planning horizon spanning 2010 to 2050, causing SANDAG to disclose GHG impacts in 2050 compared to the existing baseline in 2010. Under guidance from some regional air quality boards, a project’s GHG construction emissions are often amortized over the operational life of the project, which is typically 30 years. (South Coast Air Quality Management District, Greenhouse Gas Significance Thresholds, December 5, 2008.) Accordingly, unless an lead agency is analyzing a project with an explicit planning horizon that spans 2050, then do lead agencies have any obligation to evaluate GHG emission impacts in 2050? Is a 2050 analysis something lead agencies should only start analyzing on common development projects in 2020?

2) The Supreme Court remanded the case to the court of appeals for proceedings consistent with its opinion, but also noted that it did not grant review or express an opinion on issues such as whether SANDAG greenhouse gas emission mitigation measures were inadequate. SANDAG’s conclusion that its 2050 impacts were significant and unmitigated caused SANDAG to impose partial mitigation measures it believed were feasible, but was punished for doing so when the court of appeal found those measures inadequate. However, the Supreme Court affirmed that it was too speculative to further analyze the RTP’s 2050 GHG impacts. CEQA Guidelines 15145 states, that “[i]f, after thorough investigation, a lead agency finds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact.” If SANDAG was entitled to terminate the discussion of the impact, then does a lead agency need to draw any significance conclusion once it has made a “too‑speculative” finding and does a lead agency need to impose any partial mitigation?

Conclusion

In the author’s opinion, the Supreme Court missed an opportunity to grant review and provide guidance on key issues that will likely recur. However, the case still provides some guidance on addressing long-term GHG emissions. Many lead agencies and GHG consultants are already adept at analyzing GHG emissions in accordance with CEQA Guidelines 15164.4 by (a) disclosing GHG emission compared to the existing baseline, (b) substantiating the GHG threshold selected by the lead agency, and (c) analyzing consistency with applicable GHG reduction plans. Furthermore, they are skilled at updating the GHG modeling tools to reflect the impacts of new GHG-reducing regulations to the extent quantifiable. Additionally, lead agencies commonly disclose the Executive Order and the environmental impacts that experts believe will result if emissions levels are not stabilized.

It is clear that lead agencies struggle to analyze the significance of GHG impacts in their long-term planning documents and courts struggle to decide how much analysis is enough. Because general plans, climate action plans, and regional transportation plans have to be regularly updated and agencies are mindful of their duty to be stewards of the environment, successive versions of long-range planning documents will establish clearer and stricter GHG reduction measures on their own as local, state and federal regulations are implemented and the ability to measure the GHG reductions that follow are improved. The pursuit of the perfect GHG reduction plan via litigation has become the enemy of the good when it halts the implementation of GHG reduction plans with built-in mechanisms for continual improvement. CEQA Guidelines 15183.5 (b)(1)(E) states, “[a] plan for the reduction of greenhouse gas emissions should…[e]stablish a mechanism to monitor the plan’s progress toward achieving the level and to require amendment if the plan is not achieving specified levels.”

Finally, this decision comes approximately a year and a half after the decision in Center for Biological Diversity v. California Dept. of Fish and Wildlife, supra, where the Supreme Court chose not to defer to a public agency’s judgment that the Business-As-Usual methodology was an appropriate significance threshold. Here, the Supreme Court deferred to the reasonable judgement of SANDAG in combining three factors into a significance threshold, but immediately limited the scope of its opinion and warns that use of the significance threshold may not be upheld in the future. Combined Sierra Club v. County of San Diego, Center for Biological Diversity v. California Dept. of Fish and Wildlife, and now Cleveland National Forest Foundation, et al. v. San Diego Association of Governments assure that GHG analysis will remain subject to legal and regulatory uncertainty for years to come.

The California Supreme Court has drawn a deeper line in the sand by (a) refusing to expand the Mitigation Fee Act to cover “land use restrictions” in permit conditions of approval that are unrelated to the project’s construction, and (b) requiring applicants to litigate their objections to final judgment before accepting the benefits of the permit. Though the case involved a Coastal Commission permit, it has broader implications discussed below.

The Decision

In a unanimous decision, the California Supreme Court held in Barbara Lynch et al. v. California Coastal Commission that a permit applicant forfeits its right to challenge project conditions that are “land use restrictions” by accepting the permit’s benefits (e.g., by going ahead with construction of the permitted project) before obtaining a final judicial determination on the applicant’s objections. The State Mitigation Fee Act still allows developers to judicially challenge fees and other exactions (i.e., conditions that divest the developer of money or a possessory interest in land, such as an easement) while development proceeds, but the court declined to extend that right to any other type of project condition. The court’s decision puts the onus on developers to resolve their challenges to land use restrictions before accepting the benefits of the permit.

Practical Implications

Although the case related to a coastal development permit, the court’s decision has broader implications:

Applicants faced with objectionable permit conditions other than fees and exactions must decide whether to delay their project to challenge unfavorable permit conditions, or acquiesce to the conditions and start construction.

Applicants without the resources or appetite to litigate will be forced to accept unlawful permit conditions.

Regulatory bodies that issue permits may be emboldened to impose questionable land use restrictions if they believe that the applicant’s cost to satisfy those conditions is insufficient to warrant project delay.

The court stated that construction could proceed during a legal challenge to a land use restriction if the applicant and public agency that imposed the condition enter into an express agreement to that effect. It remains to be seen, however, whether public agencies will be willing to do so in most circumstances.

Applicants should strive, to the extent possible, to negotiate all permit conditions before the relevant entitlement is issued.

Analysis

Plaintiffs, two homeowners in Encinitas, who received a coastal development permit to build a new seawall and repair a staircase connecting their blufftop homes to the beach below, challenged Coastal Commission permit conditions imposing a 20-year term on the permit and prohibiting the construction of the staircase. While the plaintiffs litigated their challenge to the permit conditions, they satisfied all other permit conditions, obtained the permit, and built the seawall. The court found that, by doing so, they forfeited their objections to the permit conditions.

The homeowners argued that, because the challenged conditions did not affect the project’s construction, they were able to maintain their challenge while constructing the seawall. The court disagreed. Under the Mitigation Fee Act (the “Act”), an applicant can – under protest – accept the benefits of a permit and concurrently challenge fees, dedications, reservations, or other exactions. But land use restrictions are not considered “other exactions” under the Act. The court refused to expand the meaning of “other exactions” to include land use restrictions, even when such restrictions can be separated from a project’s construction.

The court reasoned that “allowing applicants to challenge a permit’s restrictions after taking all of its benefits would change the dynamics of permit negotiations and would foster litigation.” It stated that requiring applicants to litigate objections to permit conditions before proceeding with a project notifies the issuing agency that its decision is being questioned and allows the government to mitigate potential damages, thereby preserving the delicate balancing of interests involved in land use decisions.

The court also rejected the homeowners’ plea that they were under duress to construct the new seawall due to safety concerns relating to the instability of the bluff following winter storms. Instead, the court found that the homeowners could have obtained an emergency permit to address any imminent safety concerns and to maintain the status quo while they litigated their objections to the permit conditions.

Where Do We Go From Here?

The court emphasized that any expansion of the Act, in particular to include land use restrictions that can be separated from the construction of the project, must come from the State Legislature. As such, the development community’s only recourse is to seek relief in Sacramento.

]]>https://www.realestatelanduseandenvironmentallaw.com/are-you-sure-you-want-to-challenge-that-permit-condition.html/feed/0https://www.realestatelanduseandenvironmentallaw.com/are-you-sure-you-want-to-challenge-that-permit-condition.htmlEPA, Corps Propose Rescinding Clean Water Rulehttp://feeds.lexblog.com/~r/RealEstateLandUseEnvironmentalLaw/~3/59QoP7AHfHs/rescinding-clean-water-rule.html
https://www.realestatelanduseandenvironmentallaw.com/rescinding-clean-water-rule.html#respondThu, 29 Jun 2017 21:19:32 +0000http://www.realestatelanduseandenvironmentallaw.com/?p=2674Continue Reading]]>The Environmental Protection Agency and Army Corps of Engineers on Tuesday announced a proposed rulemaking that would rescind the “Clean Water Rule” — which the agencies finalized in 2015 to revise the definition of “waters of the United States” subject to federal jurisdiction under the Clean Water Act — and recodify the prior regulatory definition of such waters. The action essentially would maintain the status quo, since the Sixth Circuit had already enjoined implementation of the Clean Water Rule nationwide pending the outcome of a legal challenge. But the agencies also said they intend to conduct a separate rulemaking to promulgate a new definition of waters of the United States that will consider the principles outlined in Justice Scalia’s plurality opinion for the Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006). Both the repeal and the new definition would be consistent with direction given in an executive order signed by President Trump on February 28, 2017.

The proposed rulemaking comes as no surprise, given President Trump’s executive order and the agencies’ statement in the Federal Register on March 6, 2017, that they intended to rescind or revise the Clean Water Rule. But it indicates the EPA and Corps are moving quickly to pare back what many saw as an expansion of federal authority under the Obama administration. The Clean Water Rule sought to define waters of the United States consistent with Justice Kennedy’s concurring opinion in Rapanos. Unlike Justice Scalia’s opinion — which would have limited Clean Water Act jurisdiction to traditionally navigable waterways, tributaries with relatively permanent flows, and wetlands with a continuous surface connection to such waters — Justice Kennedy’s opinion also endorsed federal jurisdiction over intermittent and ephemeral streams, and wetlands lacking a continuous surface connection to other waters, if they have a “significant nexus” to a traditional navigable water.

If the EPA and Corps adopt a new definition consistent with Justice Scalia’s opinion, as yesterday’s announcement suggests, it will mark a significant reduction in federal jurisdiction, particularly in the arid West where ephemeral streams are common. But the practical effect of the change is hard to gauge — at least in California, where officials have already proposed an expanded permitting program under state law that would regulate fill of such features. Adding to the uncertainty, the rescission and eventual revision of the regulatory definition is sure to draw legal challenges that will likely drag on for several years.

The pre-publication version of the proposed rulemaking is available on the EPA’s website.

]]>https://www.realestatelanduseandenvironmentallaw.com/rescinding-clean-water-rule.html/feed/0https://www.realestatelanduseandenvironmentallaw.com/rescinding-clean-water-rule.htmlCity of Los Angeles Releases Draft Hollywood Community Plan Updatehttp://feeds.lexblog.com/~r/RealEstateLandUseEnvironmentalLaw/~3/k_2FLvppG6c/hollywood-community-plan-update.html
https://www.realestatelanduseandenvironmentallaw.com/hollywood-community-plan-update.html#respondFri, 16 Jun 2017 22:16:45 +0000http://www.realestatelanduseandenvironmentallaw.com/?p=2670Continue Reading]]>On June 13, 2017, the City of Los Angeles released its new Hollywood Community Plan (“Plan”) draft. The current plan dates back to 1988. In 2012, the City adopted an update to the community plan that was subsequently litigated and then rescinded by a Superior Court ruling. Thus, for the last several years, the City has used the 1988 community plan to guide land use decisions in Hollywood while adjusting to modern development trends in the area.

Now, the City has taken a major step to synchronize its long-range planning document for Hollywood with the current realities of growth, development, and community desires. In essence, the Plan embodies the City’s goals to cluster density near major public transit nodes and along transit corridors. These efforts attempt to simultaneously reduce vehicle miles traveled, accommodate population dynamics, enhance the pedestrian realm, and balance development patterns with community continuity

Sheppard Mullin will continue to monitor the City’s environmental review process to adopt the Plan and we are available anytime to discuss with you how it could affect your land or development projects in Hollywood.

The draft Hollywood Community Plan can be found on the City’s project website.